Regina v Bijkerk

GROVE J SULLY J SIMPSON J

1 GROVE J : This is an appeal following conviction of the appellant by Flannery DCJ in the Sydney District Court on a count of conspiracy to import a commercial quantity of the narcotic drug cocaine. The offence was particularized to have been committed between 1 January and 28 September 1993. 2 Despite a plea of guilty having been entered in the District Court, the appeal challenges conviction. Some background needs to be sketched. The appellant and a co-accused, Richards were listed to be identically indicted on 19 April 1999. Both the then accused objected to the admissibility of intended Crown evidence substantially in reliance upon principles asserted to have been articulated in judgments by the High Court in Ridgeway v The Queen 1995 184 CLR 19. Flannery DCJ embarked upon a voir dire hearing. The material placed before him was voluminous and included transcripts from inconclusive hearings. At an earlier trial, presided over by Viney DCJ, a jury failed to agree. Two further trials had commenced, presided over by Christie DCJ, but both were aborted before verdict. 3 Both Viney DCJ and Christie DCJ had conducted similar voir dire hearings concerning the admissibility of the Crown evidence and had ruled in favour of admissibility. On 11 May 1999 Flannery DCJ ruled that the proposed evidence would be admitted and indicated that he would publish his reasons at a later date. He did so on 27 July. However, after announcement of the ruling, the appellant was re-indicted and pleaded guilty. Richards pleaded not guilty and his trial proceeded, culminating in a verdict of guilty being returned by the jury on 7 June. On 24 November 1999, his Honour imposed sentences of twelve years imprisonment (with a minimum term of eight years) on Richards and six and a half years imprisonment (a minimum term of four years) on the appellant. 4 The submissions on behalf of the appellant must be examined in the context of facts. 5 In the course of employment for a corporation which involved some customs agency, one Modica discovered that the Australian Customs utilized a stamp which, if impressed on an invoice prior to goods being shipped, at least from the United States, signalled that the goods had been inspected at the point of export and no further inspection was required in Australia. Modica forged such a stamp. Importing contraband by means of its use was referred to as Modica's "scheme". 6 In February 1992 Modica was arrested in connection with a planned importation of a large quantity of heroin coming from Asia. At interview he mentioned to police that a person named Cluff and an associate of his, whom Modica knew as Warren, were interested in utilizing his scheme. The police suspected, correctly as it turned out, that Warren was in fact, Warren Richards. Police information was that Richards was an active criminal in a wide range of offences. Cluff's interest in the scheme was no doubt whetted by his participation in an unsuccessful attempt in 1990 to import cocaine from the United States which had been foiled by U.S. authorities which had intercepted the narcotic shipment. 7 Police were interested in targeting Cluff and Richards as likely offenders and determined to utilize Modica in that regard. Necessary arrangements were made for recording conversations between Modica and Cluff. There were intermittent contacts. In June 1993 a meeting took place at which Richards introduced Cluff to the appellant who enquired at that meeting whether Modica could organize unimpeded import of cocaine from South America, (where it could be purchased more cheaply than in the United States). Cluff replied that he thought not. 8 Some considerable time later a further meeting took place, this time between Cluff, Modica and the appellant arising out of which it was agreed to proceed with a plan to import four kilograms of cocaine from the United States. The appellant travelled twice to that country in connection with this plan. No narcotic was obtained on the first trip in July 1993 and the appellant engaged in a "dummy run", obviously testing the efficacy of the scheme. He obtained and despatched a pistol to Australia through a freight forwarding office in America. Authorities intervened by unpacking and photographing the weapon, altering its mechanism so as to render it incapable of discharging a bullet and then restoring the package into the transit arranged by the appellant (but under continuing surveillance). 9 On the second trip in September 1993 the appellant purchased what amounted to 3.2 kilograms of pure cocaine and deposited it within two cartons of coffee granules which he lodged for shipment with a freight forwarder. The parcels bore invoices which the appellant had received from Modica. The consignment was imported into Australia accordingly but intercepted and substitution made, after which delivery took place. The appellant was arrested at the place where delivery was made. 10 I shall refer to other facts in connection with particular submissions. 11 A notice of appeal dated 2 June 1999 (that is, prior to delivery of reasons by Flannery DCJ on 27 July) is with the papers although there is no indication on the face of the document as to when it was filed. Some grounds of appeal were expressed in that document but written submissions on behalf of the appellant filed 1 February 2000 enumerated propositions "concerning each of which it is suggested his Honour erred in a material respect". These were treated by the Crown as grounds for the purposes of its written response. It is convenient to set out those paragraphs and I will also refer to them as grounds. "1. His Honour erred in the exercise of his discretion in his use of the 'unwary innocent' test as a basis, or indeed the basis, for determining that this case did not come within category one of the procurement categories identified in the leading judgment in Ridgeway. 2. His Honour erred in finding the illegal police conduct did not come within the second category of Ridgeway (p.14.7). All of the evidence should have been excluded applying the principles of Ridgeway and s.138 of the Evidence Act. Summaries of established and suspected illegal and improper conduct are set out in schedule A and B hereto respectively. 3. His Honour took into account an irrelevant consideration, being that the actual importation of part of the cocaine into Australia by the Australian Federal Police did not constitute an element of the offence with which Bijkerk was charged. The principles of Ridgeway are not excluded from consideration for that reason. It is also noted that police imported the whole, not part, of the drugs concerned. 4. Likewise, the introduction of s.15X of the Crimes Act (C'th) had no bearing on the conspiracy charge. Evidence of the importation by Australian Federal Police officers was relied upon by the appellant as evidence of the illegality of the conduct of police as co-conspirators. It was not sought to exclude the importation from evidence but rather to rely upon it for the purpose of the argument. 5. The degree of procurement in this case is greater than in Ridgeway inasmuch as it was the police through their agent Modica who instigated the offence, not Bijkerk. In Ridgeway it was Ridgeway who initiated the offence by contacting and pursuing Lee. His Honour gave no apparent recognition to that situation. 6. One of the differences relied upon by his Honour in distinguishing Ridgeway was that in Bijkerk's case, the offence was not committed by persons who would not otherwise be unlikely to commit it. His Honour seems to have not appreciated that Ridgeway initiated the importation of the drugs. Ridgeway cannot be portrayed as an 'unwary innocent' whatever the relevance of such a finding might be. 7. His Honour erred in applying the principle that 'Courts should be cautious about impugning imaginative techniques designed to combat the resourceful apparatus of perpetrations of serious crime' to the facts of this case. 8. His Honour erred in ruling that even if the facts of this matter came within the first category of Ridgeway, he would still allow the evidence in on the basis of 'competing desirabilities'. This was a case in which a proper exercise of the public policy discretion in accordance with Ridgeway and s.138 of the Evidence Act required exclusion of the evidence. 9. His Honour erred in finding that the appellant was not an 'unwary innocent' to the extent that this was a relevant or proper consideration in the case. There is no sufficient evidentiary basis for the making of such a finding." 12 The argument on behalf of the appellant was not developed by sequential attention to these grounds but it is convenient to use them for reference and to deal first with grounds 1 and 9 which are topically associated. 13 An observation was made by Gleeson CJ in R v Sloane 1990 49 A Crim R 270 concerning the sale of drugs to an undercover police officer that such specific sale would never have taken place but for the activity of the relevant police officer, but that that was not sufficient to constitute a case of entrapment. His Honour added: "To use the language of an American case on the subject, 'a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal' Sherman v The United States 356 US 369".

The quotation is a precaution in pithy language rather than a formulation of a precise legal test. 14 Unlike what is apparently the position in the United States, entrapment does not offer a defence against conviction for the commission of a crime: R v Hsing 1992 25 NSWLR 685, but, where entrapment is shown to have occurred, it is not irrelevant to the conduct of a prosecution. In Ridgeway the majority judgment (Mason CJ, Deane and Dawson JJ) accepted that a trial judge possesses a discretion to exclude, on public policy grounds, evidence of an offence where its commission was brought about by unlawful conduct on the part of law enforcement officers and further that such discretion existed where a criminal offence has been induced by improper, though not unlawful, conduct on the part of the authorities. Their Honours recognized the conceptual possibility that there may exist "extreme cases of creating circumstances of temptation under which a vulnerable but otherwise law abiding citizen commits an offence of a kind which (so far as the police are concerned) he or she otherwise might not have committed….." 15 Their Honours specified that their references to an offence being "procured" by illegal conduct on the part of law enforcement officers were intended to refer to two distinct, but possibly overlapping, categories of case. They stated: "The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. ……… The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence. An example of that category is a case where a person is charged with receipt or possession of stolen property in circumstances where not only the supply, but the actual theft, of the stolen property has been organized by the police for the purpose of obtaining the conviction of the person to whom it is supplied. In that category of case, the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. Even in such a case, if the police conduct is disowned by those in higher authority and criminal proceedings have been instituted against the police as well as the accused it is unlikely that considerations of public policy relating to the integrity of the administration of criminal justice would require the exclusion of evidence either of the accused offence or of the particular element of it created by the police illegality. If, however the illegal police conduct would appear to be condoned by those in higher authority and it does not appear that criminal proceedings have been brought against the police, those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised." Ridgeway @ p 39. 16 Senior counsel for the appellant expressly limited his challenge in the appeal to an assertion that the current circumstances fell within the second category delineated in that extract from the majority judgment in Ridgeway. It does not appear that argument was put before Flannery DCJ with such precision. There are initial obstacles to the appellant's contention. The "controlled" importation was not a principal offence to which the appellant's conspiracy could be regarded as ancillary, having regard to the circumstance that the appellant's offence was complete before that activity was undertaken. Neither was that importation, nor any other police conduct, constituent of an essential ingredient in the offence charged. In making these remarks, I have of course ignored the potential effect of s15X of the Crimes Act. That said, I will proceed to deal with the arguments advanced on behalf of the appellant. 17 The reference by Flannery DCJ to his finding that the appellant was not "an unwary innocent" appeared in the context of his judgment rejecting argument that the circumstances fulfilled the criterion specified as the first category in Ridgeway. His Honour found that there was no impropriety in the police conduct and found that Richards had shown an interest in the Modica scheme. The appellant was introduced into the scheme by Richards through Cluff. That scheme had been discussed between Cluff and Richards in its application to drug importation prior to Modica being "programmed". His Honour noted that the appellant had two convictions for selling drugs of addiction and found that neither accused then before the Court was an "unwary innocent". 18 Senior counsel submitted on behalf of the appellant that it was necessary to show that a person had a predisposition to commission of a crime of generally similar type to that charged but antecedent to it in order to be categorized as an "unwary criminal" as distinct from an "unwary innocent". I have expressed my view that the language in the United States Supreme Court did not formulate a precise legal test but, even if it be so regarded, the appellant fails to qualify for classification as an "unwary innocent". His prior convictions produce that result. 19 In his judgment Flannery DCJ relied upon, inter alia, decisions of this Court in R v Dumas unreported CCA 20 November 1995; R v Karam 1995 83 A Crim R 416; R v Salem 1997 96 A Crim R 421 and R v Coulstock 1998 99 A Crim R 143. In the course of argument senior counsel for the appellant invited this Court to depart specifically from the first three of those decisions and from a decision in R v Saleam 1999 NSW CCA 86. It might be observed that Salem was expressly applied in Coulstock. For completeness, I should ad a reference by counsel to Regina v N 1999 NSW CCA 187 which was an application for leave to appeal against sentence in which remarks concerning Ridgeway were made. 20 The contention of the appellant was that Flannery DCJ had misdirected himself in exercising his discretion in finding that the appellant was not an "unwary innocent" by reason of his following the principles adumbrated in the decisions from which this Court is now invited to depart. In support of the submission it was contended that the convictions of the appellant referred to by his Honour were matters relating to events decades earlier and could not provide a resource from which such a finding could be made. To approach the issue in this way, assumes that classification as either an "unwary innocent" or "unwary criminal" is a definitive legal test. Even if one assumed, to the contrary of the view which I have expressed, that it is such a test, I see no reason for placing an arbitrary time limit upon the span over which an offender's predisposition is to be assessed. 21 I am unable to perceive that anything said in any of the cases referred to represents misunderstanding or misapplication of the principles of Ridgeway. 22 More significantly in my view, however, is the assessment of the appellant's activity in relation to the crime itself which plainly demonstrates that his criminality is self inspired and not induced by conduct of the police. I have already observed that it was the appellant in association with Richards who approached Modica and that in his first conversation with Cluff he explored the possibility of using the mooted scheme for import from South America where the obtaining of supply of narcotic was cheaper than in the United States. The evidence further shows that it was the appellant who negotiated the financial arrangements with Modica and extracted an agreement for financial contribution from him. There is an abundance of evidence concerning conversations in which the appellant participated prior to the importation of the narcotic following his second trip to America wherein he displayed enthusiasm for the proposed venture, an intention to explore further ventures and attention to detail for avoiding possible detection. He discussed marketing strategies for the narcotic and, highly significantly, whilst in the United States he negotiated the price and purchased cocaine from his own contacts. In respect of this neither police nor Modica played any part. 23 Neither of these grounds is made out. 24 Grounds 2, 5 and 6 relate directly and indirectly to the proposition that the whole of the intended Crown evidence should be rejected in accordance with the principles outlined for the second category in Ridgeway. 25 As is made plain in the language of the judgment, the principles outlined are applicable where illegal police conduct is either the principal offence to which the offence charged against the accused is ancillary or where that conduct constitutes an essential ingredient of the charged offence. I have already made brief reference to this in dealing with grounds 1 and 9. 26 The offence charged against the appellant was conspiracy to import into Australia a commercial quantity of narcotics. The terms of the charge were that he conspired with Richards. The offence was complete once the appellant agreed with Richards to embark upon the criminal enterprise and was powerfully evidenced by the conduct of the appellant in meeting Modica and settling the terms of the agreement including financial contribution. The actual importation was not a necessary element of that offence and it was complete not only before the importation took place but before the preceding "dummy run". 27 I consider that the fact that the offence was complete before the importation took place provides an insuperable obstacle to the contention by the appellant that the second category described in Ridgeway is applicable. Counsel sought to meet this obstacle by contending that the offence of conspiracy commences when the agreement is struck and continues thereafter and is therefore not completed. That proposition is unsound. The offence is complete when the agreement is struck. Evidence, particularly of subsequent overt acts, is admissible to demonstrate that such agreement has been reached between the conspirators but this does not mean that the progression of criminal activity subsequent to the agreement constitute essential ingredients of the offence charged. 28 The conclusions which I have reached essentially dispose of the matters raised in ground 3. It was not irrelevant for his Honour to observe that the actual importation was not an element of the offence charged and no error by his Honour is demonstrated. 29 Ground 4 refers to s15X of the Crimes Act (Commonwealth). This provision is a Part of the Crimes Act relating specifically to "controlled operations started before commencement of" the Part. Commencement date was 8 July 1996. In terms, the provision specifies that the fact that a law enforcement officer committed an offence in relation to the importation of narcotic goods is to be disregarded when an issue as to admissibility of evidence arises (subject to certain provisions which are not currently germane). The provision has application to an offence of conspiracy by reason of the reference to an "associated offence" to an offence contrary to s233B of the Customs Act, which in turn is defined (in s3 of the Crimes Act) to include an offence under subs 86(1) of the Crimes Act, which in its turn refers to conspiracy. 30 There is no real issue turning upon s15X. In the expression of ground 4 it is stated that the evidence concerning importation was not the subject of objection but rather the appellant wished to have that evidence before the Court in order to demonstrate his assertion that the law enforcement authorities were themselves offenders. 31 As has been pointed out the contention that police were co-conspirators encounters the obstacle that the appellant's offence was complete upon reaching agreement to import the cocaine. Although Flannery DCJ did not deal with the matter on this basis, the evidence discloses a further difficulty in an evidentiary sense which faces the appellant. The first trip by the appellant to America (which did not result in the importation of any cocaine) was nevertheless shown to be a trip connected with intended importation. There is evidence that on the day that the appellant departed from Australia the Federal Police cabled their liaison officer in Los Angeles requesting that the Drug Enforcement Agency in America be informed that (assuming the appellant became possessed of narcotic) it was desired that he be arrested in America and that no shipment to Australia be permitted to proceed. There were other contacts between Australian and United States authorities to the same effect. The consequence is that the evidence rather than demonstrating that the police were entering into criminal conspiracy with the appellant shows that they were seeking to have him promptly arrested and dealt with according to law. 32 Ground 7 seeks to promote a passing remark by his Honour into a legal principle which he applied. As the terms set out in ground 7 show, ordinary reading of the comments reveal no more than a caution. His Honour's observation was entirely compatible with others to like effect, for example, in Salem Hidden J noted that a trial judge's observation "that the familiar investigative technique used in this case is 'one of the more depressing by-products of the hermetically sealed drug culture' was entirely apt". Salem was a case of sale of narcotic to an undercover police operative posing as a purchaser. 33 It has already been observed that, despite the terms of ground 8, senior counsel at the hearing of the appeal expressly pressed his argument only in relation to the second category mentioned in the extract of judgment from Ridgeway above set out. There is no indication of error in his Honour's approach to application of s138 of the Evidence Act and it was entirely consistent with the approach approved in Salem. 34 The appeal should be dismissed.

GROVE J SULLY J SIMPSON J

35 SULLY J : I agree with Grove J. **********

GROVE J SULLY J SIMPSON J

36 SIMPSON J : I agree with the order proposed by Grove J and with his reasons therefor. **********

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